Citation Nr: 1105496
Decision Date: 02/10/11 Archive Date: 02/18/11
DOCKET NO. 07-17 757 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUES
1. Entitlement to service connection for a bilateral foot
disorder, including pes planus, plantar fasciitis, and heel
spurs.
2. Entitlement to service connection for hypertension.
3. Entitlement to service connection for a low back disorder.
4. Entitlement to service connection for a right knee disorder.
5. Entitlement to service connection for a left knee disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. P. Swick, Associate Counsel
INTRODUCTION
The Veteran served on active duty (AD) in the U.S. Army from June
1981 to February 1989. He was subsequently in the U.S. Army
Reserves, including on AD from February to May 1991, and a member
of the Alabama Army National Guard with no periods of AD. He had
a number of days of active duty for training (ACDUTRA) each year,
but only the exact dates of his ACDUTRA service in 2003 and 2004
have been verified.
This appeal to the Board of Veterans' Appeals (Board) is from an
August 2006 rating decision by the Department of Veterans Affairs
(VA) Regional Office (RO) in St. Petersburg, Florida.
The Board is remanding the claims to the RO via the Appeals
Management Center (AMC) in Washington, DC, for further
development and consideration.
REMAND
Medical nexus opinions are needed to assist in deciding the
Veteran's claims. His claims must be developed to consider all
potential theories of entitlement, including aggravation of a
pre-existing condition, direct incurrence of a disability
in service, manifestation during the one-year presumptive period
after service, and disability that may be proximately due to, the
result of, or chronically aggravated by service-connected
disability to otherwise warrant service connection on a still
additional secondary basis. See Szemraj v. Principi, 357 F.3d
1370, 1371 (Fed. Cir. 2004) (indicating that, when determining
whether a claimant is entitled to service connection, all
potential theories of entitlement must be considered).
Additionally, since the Veteran appears to have had multiple
periods of AD or ACDUTRA, all must be considered in deciding his
claims.
It is already known the Veteran had two periods of AD service -
from June 1981 to February 1989 and from February to May 1991 -
and eleven years of additional service in the Reserves and state
National Guard. So for each of his claimed conditions, if due to
disease or injury, it must be determined whether it was
incurred or aggravated during active military service while on AD
or ACDUTRA. And if due to injury (though not disease), there
also remains the possibility it was incurred in or aggravated
while on inactive duty training (INACDUTRA). 38 U.S.C.A. §§
101(21), (22), (23), (24), 106, 1110, 1131; 38 C.F.R. §§ 3.6(a),
(d), 3.303(a). See also Harris v. West, 13 Vet. App. 509, 511
(2000);
Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson
v. Brown, 7 Vet. App. 466, 470 (1995); and Biggins v. Derwinski,
1 Vet. App. 474, 478 (1991).
National Guard duty, on the other hand, is distinguishable from
other Reserve service in that a member of the National Guard may
be called to duty by the governor of their state. "[M]embers of
the National Guard only serve the federal military when they are
formally called into the military service of the United States[;
a]t all other times, National Guard members serve solely as
members of the State militia under the command of a state
governor." Allen v. Nicholson, 21 Vet.App. 54, 57 (2007).
"Therefore, to have basic eligibility for Veterans benefits based
on a period of duty as a member of a state National Guard, a
National Guardsman must have been ordered into Federal service by
the President of the United States, see 10 U.S.C. § 12401, or
must have performed "full-time duty" under the provisions of 32
U.S.C. §§ 316, 502, 503, 504, or 505. Id.
Certain conditions like arthritis and hypertension are considered
chronic, per se, and therefore, even if not directly incurred
during active military service, may be presumed to have been
incurred in service if manifested to a compensable degree of at
least 10-percenet disabling with one year after service. This
presumption, however, is rebuttable by probative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R.
§§ 3.307, 3.309(a). It also does not apply to claims predicated
on ACDUTRA and INACDUTRA service, only AD, and there equally
are no presumptions of soundness and aggravation concerning
claims premised on ACDUTRA and INACDUTRA service. See Biggins,
1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010).
If the condition was not directly incurred during AD, then it
must be determined whether it pre-existed either period of AD
and, if so, whether it was aggravated by that AD. If it was not
incurred in or aggravated during the AD service, then it must be
determined whether it was incurred in or aggravated by the
ACDUTRA service.
Turning back now to the facts of this particular case, the
Veteran's Points Statement indicates he performed 15-30 days of
ACDUTRA service per year in 1990, 1992, 1997,1998, 1999, 2000,
2001, 2002, 2003, 2004, and 2005.
Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must
provide a medical examination in a service-connection claim when
there is: (1) competent evidence of a current disability or
persistent or recurrent symptoms of a disability, and (2)
evidence establishing that an event, injury, or disease occurred
in service or establishing certain diseases manifesting during an
applicable presumptive period for which the claimant qualifies,
and (3) an indication that the disability or persistent or
recurrent symptoms of a disability may be associated with the
Veteran's service or with a service-connected disability, but (4)
insufficient competent medical evidence on file for VA to make a
decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2) and
38 C.F.R. § 3.159(c)(4).
When determining whether a VA examination is required under
38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of
a disability or symptoms of a disability, but does not require
competent evidence of a nexus, only that the evidence indicates
an association between the disability and service or a service-
connected disability. See Waters v. Shinseki, 601 F.3d 1274
(Fed. Cir. 2010).
Here, regarding his feet, the Veteran's service treatment records
(STRs) note bilateral asymmetric pes planus on entrance
examination in June 1981, so there was documentation of this pre-
existing condition when he began serving on AD in the military
that same month. If, as here, a pre-existing disability is noted
upon entry into service, the Veteran cannot bring a claim for
service connection for that disability, but he may bring a claim
for service-connected aggravation of that disability. In that
case, § 1153 applies and the burden falls on him, not VA,
to establish aggravation. Wagner v. Principi, 370 F.3d 1089,
1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.
Cir. 1994).
There was no such indication or notation of plantar fasciitis
and/or heel spurs, however, when entering service in June 1981.
The Veteran's STRs also show that, once in service, a right ankle
strain was diagnosed in April 1982 and a right ankle fracture in
February 1984. He had physical therapy for his right ankle in
March 1984. His STRs show left ankle strains in February 1984
and September 1988. X-rays from September 1988 show evidence of
an old avulsion fracture superior to the left talus. There is a
notation of ankle pain in January 1989, but not specification of
whether it was affecting the right or left ankle. An April 2005
treatment record from B.C.R., M.D., shows plantar fasciitis and
an April 2005 X-ray shows bilateral calcaneal heel spurs.
So an opinion is needed to determine whether these current foot
disorders are related to the ankle fractures or strains in
service or were aggravated by the Veteran's AD or ACDUTRA
service.
As for his knees, an April 1991 record shows the Veteran twisted
his left knee playing football. The diagnosis was a lateral
collateral ligament (LCL) strain. In May 1991, he continued to
complain of left knee pain on running, but X-rays were negative
and showed a normal left knee. A December 2003 annual medical
certificate indicates knee pain treated with Celebrex. The
report of the July 2006 VA examination indicates the Veteran has
congenital bilateral genu valgus deformity of the knees, which
was not caused by his military service.
This opinion, however, does not address the additional
possibility there was aggravation of this pre-existing or
congenital defect during service. Generally speaking, a
congenital defect is not service connectable as a matter of
express VA regulation because it is not a disease or injury
within the meaning of applicable legislation for VA compensation
purposes. 38 C.F.R. §§ 3.303(c), 4.9. The only possible
exception is if there is evidence of additional disability due to
aggravation during service of a congenital disease, but not
defect, by superimposed disease or injury. VAOPGCPREC 82-90;
Quirin v. Shinseki, 22 Vet. App. 390 (2009); Monroe v. Brown, 4
Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App.
240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. See
also Winn v. Brown, 8 Vet. App. 510, 516 (1996).
In VAOPGCPREC 82-90, VA's General Counsel held that service
connection may be granted for diseases (but not defects) of
congenital, developmental or familial origin, and indicated that
support for this position could be found in VA regulations
themselves, noting that sickle cell anemia, although a familial
disease, was included for rating purposes in the Schedule for
Rating Disabilities.
A September 2006 letter from B.C.R., M.D., indicates the Veteran
has degenerative joint disease (i.e., arthritis) in both knees,
so left and right. An opinion therefore is needed to determine
whether his current knee disorders are related to his military
service, including the ankle injuries described above,
or alternatively were aggravated by his AD or ACDUTRA service.
Regarding his low back, the Veteran's STRs show treatment for low
back pain in February 1982. He was again treated for low back
pain in November 1982. The examiner indicated positive sciatica
into the left leg. A December 2003 annual medical certificate
indicates knee pain treated with Celebrex. A July 2006 VA
examination diagnosed lumbago, but the examiner determined it was
not related to the Veteran's relatively minor complaints in
service. However, a September 2006 letter from B.C.R., M.D.,
indicates the Veteran has degenerative disc disease (arthritis)
in his low back, so not just in his knees. Hence, an opinion is
needed to determine whether his current low back disorder is
related to his back injuries in service or was aggravated by his
AD or ACDUTRA service.
Lastly, concerning his hypertension, the Veteran's STRs show a
blood pressure reading of 152/102 in November 1987. He had a 5-
day blood pressure monitoring. A January 1988 treatment record
shows blood pressure of 130/80. A May 1988 treatment record
shows blood pressure of 140/92. He had a second 5-day
blood pressure monitoring with blood pressures of 130/80, 136/80,
138/90, 142/92, and 140/92. A May 1991 record shows blood
pressure of 156/96. An April 1991 physical indicates a then
recent elevation of blood pressure during a rain storm. The
report of his enlistment physical for the Alabama National Guard
in April 1997 shows blood pressure of 144/68. An April 2002
National Guard physical indicates hypertension since 1991.
The report of the July 2006 VA examination incorrectly states the
Veteran was diagnosed with hypertension in 1994, and as that
onset was after military service it is not related to service.
It is unclear from what source the examiner determined the onset
of hypertension as 1994, especially given this indication of
hypertension instead dating back to 1991. Consequently, the date
of onset should be clarified and an opinion provided to determine
whether the Veteran's hypertension initially manifested during
his AD or ACDUTRA service or, if pre-existing, was aggravated by
his service.
Accordingly, these claims are REMANDED for the following
additional development and consideration:
1. Schedule the Veteran for a VA
compensation examination to determine the
etiology of his right foot disability, left
foot disability, right knee disability,
left knee disability, and low back
disability.
This examiner especially needs to indicate
the likelihood (very likely, as likely as
not, or unlikely) these disabilities (1)
initially manifested during his AD military
service from June 1981 to February 1989; (2)
if involving arthritis, alternatively
manifested within the one-year presumptive
period following that service, i.e., prior to
February 1990; (3) initially manifested
during his second period of AD from February
to May 1991; (4) if involving arthritis,
alternatively manifested within the one-year
presumptive period following that service,
i.e., prior to May 1992; (5) was incurred in
or aggravated by one of his periods of
ACDUTRA service in 1990, 1992, 1997, 1998,
1999, 2000, 2001, 2002, 2003, 2004, 2005; or
(6) is otherwise related or attributable to
his service, including to any the relevant
ankle, knee and back complaints or diagnoses
in service.
To assist in making these important
determinations, the designated examiner must
review the claims file, including a complete
copy of this remand, for the Veteran's
pertinent medical and other history.
The term "as likely as not" (at least 50
percent probable) does not mean merely within
the realm of medical possibility, rather that
the weight of medical evidence both for and
against a conclusion such as causation is so
evenly divided that it is as medically sound
to find in favor of that conclusion as it is
to find against it.
All necessary diagnostic testing and
evaluation needed to make these
determinations should be performed.
The examiner must discuss the rationale of
the opinion, whether favorable or
unfavorable, if necessary citing to specific
evidence in the file.
The Veteran is hereby advised that failure to
report for this scheduled medical
examination, without good cause, may have
adverse consequences on these pending claims.
38 C.F.R. § 3.655
2. Also schedule the Veteran for a medical
examination to determine the etiology of his
hypertension.
This examiner especially needs to indicate
the likelihood (very likely, as likely as
not, or unlikely) the Veteran's hypertension
(1) initially manifested during his AD
military service from June 1981 to February
1989; (2) alternatively manifested within the
one-year presumptive period following that
service, i.e., prior to February 1990; (3)
initially manifested during his second period
of AD from February to May 1991;
(4) alternatively manifested within the one-
year presumptive period following that
service, i.e., prior to May 1992; (5) was
incurred in or aggravated by one of his
periods of ACDUTRA service in 1990, 1992,
1997, 1998, 1999, 2000, 2001, 2002, 2003,
2004, 2005; or (6) is otherwise related or
attributable to his service.
3. Then readjudicate these several claims in
light of the additional evidence. If these
claims are not granted to the Veteran's
satisfaction, send him and his representative
a supplemental statement of the case (SSOC)
and give them an opportunity to respond to it
before returning the file to the Board for
further consideration of these claims.
The Veteran has the right to submit additional evidence and
argument concerning the claims the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2010).
______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs